BILL ANALYSIS Ó
AB 1448
Page 1
Date of Hearing: May 5, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1448
(Lopez) - As Amended April 23, 2015
As Proposed to be Amended
SUBJECT: clotheslines and drying racks: real property
restrictions
KEY ISSUES:
1)Should a landlord be required to permit a tenant to have an
energy-saving clothesline or drying rack in the tenant's
private area, so long as it does not interfere with property
maintenance or pose a safety threat?
2)Should a provisIon in the governing documents of a homeowners'
association be unenforceable if it unreasonably restricts an
owner from using a backyard clothesline or drying rack?
SYNOPSIS
This modest energy conservation measure will make it easier for
renters and owners in a homeowners' association (HOA) to use an
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outdoor clothesline or drying rack in order to conserve energy
and cut utility costs. The bill has ample protections for
landlords and HOAs. First, a landlord must approve the tenant's
choice of clothesline or drying rack and may impose reasonable
restrictions as to time and place. Second, as for HOA owners,
the bill makes unenforceable any provisions in the governing
documents that unreasonably impairs the ability of the owner to
use a backyard clothesline or drying rack. The bill specifies,
however, that the HOA may still impose reasonable restrictions
on the use of backyard clotheslines and drying racks.
Notwithstanding the author's effort to clarify the right of
landlords and HOAs to impose reasonable restrictions on the use
of these simple energy-saving devices, the bill is opposed by
landlord and HOA groups who fear that clotheslines will create
an eyesore and may damage property. The author has graciously
agreed to amend the bill further to clarify that a tenant cannot
affix a clothesline to a building exterior without the
landlord's prior approval, even though this was probably already
covered under existing language. With these amendments, the
primary basis for continuing opposition appears to be
aesthetics. This bill is sponsored by The Utility Reform
Network (TURN) and supported by Conference of California Bar
Associations, the Consumer Federation of California, the
California State Grange, and the Sebastopol Grange. The author
will take amendments in this Committee that are reflected in the
analysis.
SUMMARY: Permits tenants, as well as owners in a homeowners
association, to use reasonable clotheslines and drying racks, as
specified. Specifically, this bill:
1)Requires a landlord to permit a tenant to use a clothesline or
drying rack approved by the landlord in the tenant's private
area, subject to reasonable time and location restrictions, if
the following conditions are met:
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a) The clothesline or drying rack shall not interfere with
the maintenance of the rental property.
b) The clothesline or drying rack shall not create a health
or safety hazard, block doorways, or interfere with
walkways or utility service equipment.
c) The tenant seeks the landlord's prior approval before
affixing a clothesline to a building.
2)Makes void and unenforceable any provision in HOA governing
documents that effectively prohibits or unreasonably restricts
a homeowner's ability to use a backyard clothesline or drying
rack. Specifies that nothing in this provision shall prevent
the HOA from establishing reasonable rules and restrictions
governing clotheslines or drying racks.
EXISTING LAW:
1)Regulates the terms and conditions of residential tenancies,
and generally requires landlords to keep the rental units in a
condition fit for occupancy. (Civil Code Section 1940 et
seq.)
2)Creates an implied covenant of quiet enjoyment in every lease,
requiring that the tenant shall not be disturbed in his or her
possession by the landlord. (Civil Code Section 1927; Pierce
v. Nash (1954) 126 Cal.App.2d 606, 612.)
3)Regulates the purposes for which a renter's security deposit
may be used, including, but not limited to, compensating the
landlord for default on payment of rent, cleaning or repairing
rented property, exclusive of normal wear and tear, or
remedying future obligations under the rental agreement, as
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specified. (Code of Civil Procedure Section 1950.5 (a)-(e).)
4)Permits the governing board of a HOA to adopt operating rules
that apply generally to the management and operation of the
common interest development or the conduct of the business and
affairs of HOA, provided that the rule is within the authority
of the board to make, does not conflict with the association's
articles, bylaws, or governing law, and is reasonable. (Civil
Code Sections 4340 and 4350.)
5)Provides specified limits to the authority of HOA governing
documents to regulate the use of a member's separate interest,
including provisions relating to the display of signs, the
installation of solar energy systems, and modification to
property to accommodate a disability. (Civil Code Section
4700 et seq.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This modest energy conservation and freedom of choice
measure will make it easier for renters and owners in a
homeowners' association (HOA) to make use of an outdoor
clothesline or drying rack in order to conserve energy and cut
utility costs. The bill has ample protections for landlords and
HOAs. First, a landlord must approve the tenant's choice of
clothesline or drying rack and may impose reasonable
restrictions as to time and location. As for owners in an HOA,
the bill provides that any provision in the governing documents
that unreasonably prohibits or impairs the ability of the owner
to use a backyard clothesline or drying rack is unenforceable.
However, the bill permits the HOA to impose reasonable
restrictions on the use of backyard clotheslines and drying
racks. The bill also makes it clear that the HOA owner's right
to use a clothesline or drying rack is restricted to backyard
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space that is for the exclusive use of the owner; there would be
no right under this bill to use a clothesline or drying rack in
any HOA common area.
Opponents Claims Seem Overstated Given Requirement for Landlord
Approval: Many of the concerns raised by the many regional
apartment associations opposed to this bill appear to be already
addressed by the requirement that any clothesline or drying rack
must be "approved by the landlord" and subject to "reasonable
time and location restrictions." Opponents fear, for example,
that tenants may attach clotheslines to buildings by drilling
holes or by other means that might damage the property. Most
landlords, the opponents contend, prefer free-standing
clotheslines or drying racks to ones that are semi-permanently
attached. But if the landlord must approve the clothesline,
presumably this means that the landlord could choose to approve
only freestanding clotheslines that do not entail drilling holes
into a building. If the tenant drilled holes without the
landlord's permission, existing law would allow the landlord to
deduct money from the security deposit to patch them up. As
noted below, to address this concern the author as agreed to an
amendment making explicit that a clothesline cannot be affixed
to a building exterior without the landlord's prior approval.
Requiring prior approval to affix the clothesline to a building
will not likely remove the opposition, however. For example,
opponents claim that they would support freestanding
clotheslines, but this claim does not square with other
objections raised. For example, opponents repeatedly proclaim
that hanging clothes (and especially underwear, it seems) is
aesthetically displeasing to other tenants and the public. But
if this is so, it is not clear why those clothes would be more
aesthetically pleasing on a freestanding clothesline than on an
attached one. Other opposition arguments also appear
inconsistent. For example, opponents contend at some points
that tenants can already use clotheslines and drying racks
inside of their apartments. Putting aside the obvious drawback
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that refreshing sunlight and breeze cannot reach clothes hanging
inside, the opponents elsewhere express the fear that tenants
will hang clothes over areas where dripping water will damage
property. But it would seem that dripping water inside the
building would cause more property damage than dripping water
outside. Moreover, it is difficult to imagine how clothes
dripping in an outdoor location would cause any more damage than
rain. If there is such an outdoor location that cannot be
reached by rain and where dripping water would cause property
damage, the bill addresses that problem by allowing the landlord
to impose reasonable restrictions as to the time and location of
the landlord-approved clothesline.
Necessity for Legislation. The California Apartment Association
(CAA) shares many of the concerns of the several regional
apartment associations, but it asks a more fundamental question:
Why is this bill necessary? CAA claims that most tenants can
already use clotheslines and drying racks and regularly work out
the details and permissions with landlords. No doubt most
landlords and tenants settle the issue reasonably and without
incident, but according to the author and supporters many
landlords and HOAs in California do, in fact, prohibit
clotheslines. The Committee does not have any evidence on
whether such restrictions are increasing or decreasing, but by
the opposition's own reckoning a fair number of landlords and
HOAs must prohibit outdoor clotheslines and drying racks,
otherwise the bill would not be necessary. For tenants and
owners dealing with these landlords and HOAs, this bill may
permit them to have reasonably placed clotheslines and drying
racks.
Tenant Property Rights and the "Bundle of Sticks." One of the
opposition letters invokes the old law-school adage that
property rights are best thought of as a "bundle of sticks."
The letter contends that one of the "sticks" enjoyed by the
property owner is the right to "control" the property. Yet the
idea of property as a "bundle of sticks" actually supports this
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bill. According to the classic formulation, the "bundle of
sticks" that make up property rights include the right to
possess; the right to exclude; the right to use or enjoy; and
the right to transfer or convey. [Jesse Dukeminier & James
Krier, Property 93 (5th ed. 2002).] The point of the "bundle of
sticks" analogy is that a property interest does not necessarily
entail all of those rights; the rights associated with property,
that is, are severable. For example, a person with a life
estate has a right to possess, exclude, and use the property,
but lacks the right to transfer. Though often forgotten by
those who invoke sanctity of property rights, a tenant enjoys
property rights every bit as worthy of protection as the
property rights of a title holder. While the tenancy lasts, the
tenant has the "right to possess" stick and the "right to use"
stick. The tenant even has the "right to exclude" stick as to
everyone but the landlord, and under California law the tenant
may even exclude the landlord subject to certain exceptions.
(See e.g. Civil Code Section 1927; Pierce v. Nash (1954) 126
Cal.App.2d 606, 612.) Like the holder of a life estate the
tenant lacks the right to transfer. Also like the holder of a
life estate, the tenant has an obligation not to "waste" (or
injure) the property, which is why California landlords are
entitled to require a security deposit and withhold parts or all
of it to cover cleaning and damage costs. (Code of Civil
Procedure Section 1950.5 (a)-(e).)
When a landlord leases property to a tenant, he or she conveys
certain "sticks" in the property-rights bundle while retaining
others. It is not unreasonable to assume that the tenant's
right to use and enjoy the property includes the right to reap
the many personal and environmental benefits of a clothesline.
Indeed, the tenant might even find the clothesline aesthetically
pleasing. Neighbors and members of the public might find the
clothesline aesthetically displeasing, but the same would be
true of a clothesline installed by a fee simple owner; yet no
one would question the fee simple owner's right to install one.
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Tenant Provisions Could Be Much Stronger. Despite opposition
claims that this bill takes too much control away from the
landlord, the bill arguably cedes too much to the landlord. The
bill only permits the tenant to use a clothesline or drying rack
that is "approved by the landlord." This could undermine the
purpose of the bill, as a landlord could simply refuse every
reasonable request by the tenant. The eminently reasonable
purpose of the bill might be better served by recasting that
provision. That is, rather than requiring the clothesline or
drying rack to be approved by the landlord, it would be more
consistent with the purpose of the bill to provide that the
landlord shall not "unreasonably disapprove" of the tenant's use
of a clothesline or drying rack so long as it meets all of the
bill's other considerable restrictions.
ARGUMENTS IN SUPPORT: The bill's sponsor, The Utility Reform
Network (TURN), argues that AB 1448 will "encourage and support
low-cost, low-tech solutions for the average citizen to keep and
maintain manageable utility bills." According to TURN, there is
"a growing movement to allow citizens the personal freedom of
hang-drying their clothing, harnessing the power of the sun."
TURN reports that six states - Florida, Maine, Utah, Vermont,
Colorado, and Hawaii - have adopted statutes that override
contracts or covenants that prohibit the use of clotheslines.
Federal studies, according to TURN, show that using clothesline
instead of electric dryers promotes energy conservation and
significantly reduces the amount of carbon dioxide emitted into
the atmosphere. Despite the obvious potential for monetary
savings and energy conservation, TURN contends that "in many
locations across California, Homeowners' Associations, Condo
Associations, and Apartment Associations deny a person's right
to utilize the power of the sun" by prohibiting the use of
clotheslines and drying racks.
The Conference of California Bar Associations (CCBA) supports
this bill for similar reasons, claiming that "studies have shown
that mechanical clothes dryers often use up to 10% of a
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household's energy consumption. However, while existing law
recognizes the value of easements for energy conservation, it
fails to include passive solar devices, such as clotheslines,
which could go a long way towards reducing unnecessary energy
consumption." AB 1448 is supported by the Consumer Federation
of California, the California State Grange, and the Sebastopol
Grange for substantially the same reasons as those cited by TURN
and CCBA. All supporters add that the bill appropriately
recognizes the right of a landlord or a homeowners' association
to impose reasonable restrictions, so long as clotheslines and
drying racks are not unreasonably prohibited altogether.
ARGUMENTS IN OPPOSITION: Opponents represent statewide and
regional associations of apartment owners and HOAs. They argue
that AB 1448 will interfere with the management and
well-established rules of apartment complexes and community
interest developments. If enacted, they claim that AB 1448
would "likely become the basis for new disputes as the bill's
right to hang laundry clashes with a property owner's concern
over the maintaining [of] the appearance of the property."
Opponents claim that there is nothing in this bill to prevent
persons from hanging laundry over balcony railings, affixing
clotheslines to building exteriors in ways that could damage the
property, or hanging lines or racks over areas that could be
harmed by dripping water. However, for many opponents, a
primary objection appears to be aesthetics: "hanging clothes and
underwear are aesthetically displeasing to other tenants and the
public" and "property overrun by drying clothes is an eyesore
and a real nuisance to the community." As a result, some of the
opponents conclude, "property values will be negatively
impacted, and tenants will be able to request a diminution of
value rent decrease from their local rent board."
The California Apartment Association (CAA) adds that a statute
on this topic is unnecessary. CAA claims that nothing in
current law would prevent a tenant from using freestanding
(unattached) clotheslines or drying racks and that "typically, a
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landlord and tenant are able to work out these sorts of issues
so long as free standing racks are discrete and not visible to
neighbors."
The Educational Community of Homeowners (ECHO), representing
community associations, opposes this bill unless amended, though
the proposed author amendments may address many of these
concerns. For example, ECHO argues that the term "personal
energy conservation purposes" is unclear, and that therefore the
HOA provision should only apply to "clotheslines and drying
racks," as does the provision on rental property. As noted, the
author has already agreed to take such an amendment in this
Committee.
Proposed Author Amendments: Opponents contend, among other
things, that the use of the term "personal energy conservation
purposes" in the provision dealing with the HOAs could be
broadly construed to include things other than clotheslines and
drying racks, such as large solar panels. This is not the
author's intent. Therefore, the author will amend the HOA
provision to mirror the language of the rental provision so that
it refers only to "a clothesline or drying rack." The
amendments also clarify that a tenant may not affix a
clothesline to a building without a landlord's prior permission.
Finally, the amendments make clarifying organizational changes.
Specifically, the author will take the following amendments:
- On page 2 line 13 after "approved" insert: , and subject
to reasonable time or location restrictions,
- On page 2 after line 19 insert: (3) The tenant seeks the
landlord's prior consent before affixing a clothesline to a
building.
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- On page 2 delete lines 20-21
- On page 3 line 7 delete "the use of a homeowner's
backyard for" and delete lines 8-9 and insert: a
homeowner's ability to use a backyard clothesline or drying
rack.
- On page 3 line 11 delete "the use of"
- On page 3 line 12 delete "personal energy conservations
purposes, including"
- On page 3 line 13 delete "or any similar device" and
insert: drying rack
- On page 3 line 15 delete "engaging" and delete lines
16-18 and insert: using a clothesline or drying rack.
- On page 3 line 23 delete "or any similar device" and
insert: or drying rack
REGISTERED SUPPORT / OPPOSITION:
Support
The Utility Reform Network (TURN) (sponsor)
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Conference of California Bar Associations
Consumer Federation of California
Sebastopol Grange # 306
Opposition
Apartment Association of Greater Los Angeles
Apartment Association of Orange County
Apartment Association, Southern California Cities
California Apartment Association
East Bay Rental Housing Association
Educational Community for Homeowners (ECHO)
Nor Cal Rental Property Association
North Valley Property Owners Association
Western Manufactured Housing Communities Association
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Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334